Morgan v. Community Health Partners , 2013 Ohio 2259 ( 2013 )

[Cite as Morgan v. Community Health Partners, 2013-Ohio-2259.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
SCOTT H. MORGAN, et al. C.A. No. 12CA010242
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
COMMUNITY HEALTH PARTNERS COURT OF COMMON PLEAS
REGIONAL MEDICAL CENTER, et al. COUNTY OF LORAIN, OHIO
CASE No. 07CV151569
Appellees
DECISION AND JOURNAL ENTRY
Dated: June 3, 2013
MOORE, Presiding Judge.
{¶1} Plaintiffs, Scott H. Morgan and Belinda Garza-Morgan (collectively “the
Morgans”), appeal from the ruling of the Lorain County Court of Common Pleas, which granted
summary judgment to Community Health Partners Regional Medical Center (“Community
Health”) and James Snowden (collectively “Appellees”) and dismissed the Morgans’ complaint.
For the reasons set forth below, we affirm.
I.
{¶2} In the early morning hours of July 31, 2006, Mr. Morgan drove his wife, Ms.
Garza-Morgan, to the emergency department of a hospital operated by Community Health, for
treatment of a laceration to her scalp. Mr. Morgan left the hospital while Ms. Garza-Morgan was
receiving treatment. Thereafter, a Community Health employee, James Snowden, alerted the
Lorain Police Department that hospital staff suspected that Ms. Garza-Morgan had been the
victim of domestic violence. Officers arrived at the hospital to investigate and conducted
2
interviews with hospital staff and Ms. Garza-Morgan. Later that morning, when Mr. Morgan
returned to pick up Ms. Garza-Morgan, an officer arrived at the hospital and arrested him on a
charge of domestic violence. The charge was ultimately dismissed upon the motion of the
prosecutor and at the request of Ms. Garza-Morgan.
{¶3} On June 29, 2007, the Morgans filed a complaint against Appellees alleging
negligence, actual malice, and invasion of privacy resulting from Appellees’ disclosure of Ms.
Garza-Morgan’s injuries and Appellees’ suspicions of domestic violence to law enforcement.1
Appellees filed a motion for summary judgment, arguing in part that they were required to make
these disclosures to law enforcement, and that they were immune from liability for doing so
pursuant to R.C. 2921.22(B)/(H). The trial court denied the motion. Thereafter, Appellees filed
a second summary judgment motion, again arguing in part that they were statutorily immune
from liability. The trial court granted the second motion for summary judgment on the basis of
R.C. 2921.22 and dismissed the Morgans’ complaint. The Morgans timely appealed from the
judgment of the trial court, and they now present one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING[ ]SUMMARY JUDGMENT IN
FAVOR OF APPELLEES UNDER R.C. 2921.22.
{¶4} In their sole assignment of error, the Morgans argue that the trial court erred in
granting Appellees’ motion for summary judgment.
1
The Morgans also named three John Does in their complaint, but the record does not
indicate that service was perfected on these unidentified parties.
3
{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is
proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶6} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). The
moving party must support the motion by pointing to some evidence in the record of the type
listed in Civ.R. 56(C). Dresher at 292-93. If the moving party satisfies its initial burden, the
non-moving party bears the burden of offering specific facts to show a genuine issue for trial. Id.The nonmoving party may not rest upon the mere allegations and denials in the pleadings but
instead must point to, or provide, some evidentiary material that demonstrates a genuine dispute
over a material fact. In re Fike Trust, 9th Dist. No. 06CA0018, 2006-Ohio-6332, ¶ 10.
{¶7} Here, in the first two counts of the complaint, Mr. Morgan alleged that Mr.
Snowden had defamed him, both negligently and with actual malice, by stating to the Lorain
Police Department that Mr. Morgan was responsible for Ms. Garza-Morgan’s injuries. Mr.
Morgan claimed that Community Health was responsible on the defamation claims based upon
the doctrine of respondeat superior. In the third count of the complaint, Ms. Garza-Morgan
alleged that Appellees had violated her right to privacy by disclosing her confidential medical
information to the police department.
4
Defamation and Privilege
{¶8} In regard to Mr. Morgan’s defamation claims, “[i]n Ohio, defamation occurs
when a publication contains a false statement ‘made with some degree of fault, reflecting
injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule,
shame or disgrace, or affecting a person adversely in his or her trade, business or profession.’”
Sturdevant v. Likley, 9th Dist. No. 12CA0024-M, 2013-Ohio-987, ¶ 7, quoting Jackson v. City of
Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9, quoting A & B-Abell Elevator Co. v.
Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7 (1995). However,
“[p]rivilege in the law of defamation recognizes certain communications as not being within the
rules imposing liability for defamation. A privileged communication is one which, except for the
occasion on which or the circumstances under which it is made, would be defamatory, and
actionable.” Costanzo v. Gaul, 62 Ohio St.2d 106, 108 (1980).
{¶9} Privileged communications may be either qualifiedly or absolutely privileged. Id.In M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 505 (1994), the Ohio Supreme Court
explained the rationale for providing a privilege to certain communications and the difference
between the two forms of privilege:
Upon certain privileged occasions where there is a great enough public interest in
encouraging uninhibited freedom of expression to require the sacrifice of the right
of the individual to protect his reputation by civil suit, the law recognizes that
false, defamatory matter may be published without civil liability. * * *
Such privileged occasions have by long judicial history been divided into two
classes–occasions absolutely privileged and those upon which the privilege is
only a qualified one. The distinction between these two classes is that the
absolute privilege protects the publisher of a false, defamatory statement even
though it is made with actual malice, in bad faith and with knowledge of its
falsity; whereas the presence of such circumstances will defeat the assertion of a
qualified privilege. * * *
Id. at 505, quoting Bigelow v. Brumley, 138 Ohio St. 574, 579-580 (1941).
5
{¶10} A statement is qualifiedly privileged if it is made in good faith, on a subject in
which the speaker has an interest or duty, limited in scope to this purpose, and made on a proper
occasion, in a proper manner, and to a proper party. Hahn v. Kotten, 43 Ohio St.2d 237, 244
(1975). In contrast, a speaker cannot be held liable for defamation when his statement is
absolutely privileged, regardless of his motives for making the statement. Sweeney at 505.
Absolute privilege is applied narrowly and “has been generally limited to legislative and judicial
proceedings, and other acts of state[.]” Costanzo at 109; Sweeney at 505, quoting Bigelow at
579-580.
Invasion of Privacy
{¶11} In regard to Ms. Garza-Morgan’s claim for invasion of privacy, Ohio law
recognizes several types of invasion of privacy causes of action. See Housh v. Peth, 165 Ohio
St. 35 (1956), paragraph two of the syllabus. The theory implicated here involves the public
disclosure of private facts, a required element of which is “publicity.” Hamrick v. Wellman
Products Group, 9th Dist. No. 03CA0146-M, 2004-Ohio-5170, ¶ 36. ‘“Publicity’ requires a
communication ‘to the public at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge[.]’” Id., quoting Killilea v. Sears,
Roebuck & Co., 27 Ohio App.3d at 166 (10th Dist.1985).
Wrongful Disclosure of Medical Information
{¶12} Ms. Garza-Morgan’s claim for invasion of privacy may also constitute a claim for
unauthorized disclosure of medical information against Community Health. This tort is
independent from that of invasion of privacy, and it protects against “the unauthorized,
unprivileged disclosure to a third party of nonpublic medical information that a physician or
hospital has learned within a physician-patient relationship.” Biddle v. Warren Gen. Hosp., 86
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Ohio St.3d 395 (1999), paragraph one of the syllabus. However, no liability on the part of the
physician or hospital on such a claim can result from the physician’s or hospital’s disclosure that
is made pursuant to law. Id. at paragraph two of the syllabus.
R.C. 2921.22
{¶13} Appellees argued, and the trial court agreed, that they were immune from liability
on the above claims pursuant to R.C. 2921.22(B)/(H). R.C. 2921.22(B) provides that “no
physician, limited practitioner, nurse, or other person giving aid to a sick or injured person shall
negligently fail to report to law enforcement authorities * * * any serious physical harm to
persons that the physician, limited practitioner, nurse, or person knows or has reasonable cause
to believe resulted from an offense of violence.” An “offense of violence” includes an act of
domestic violence in violation of R.C. 2919.25. R.C. 2901.01(A)(9)(a).
{¶14} R.C. 2921.22(H) provides that “[n]o disclosure of information pursuant to this
section gives rise to any liability or recrimination for a breach of privilege or confidence.” “The
purpose of R.C. 2921.22 is to compel the release of information necessary to aid in the solving of
crimes without fear of recourse against the divulging party.” Whipple v. Render, 9th Dist. No.
2480, 1989 WL 106582, *2 (Sept. 13, 1989): see also Kelly v. Accountancy Bd. of Ohio, 88 Ohio
App.3d 453, 459 (10th Dist.1993) (R.C. 2921.22 “unambiguously reveals an intent on the part of
the legislature to encourage the reporting of felonies and to prohibit recrimination against
individuals who make such required disclosures.”). Disclosure of information pursuant to this
section encompasses a range of disclosure acts reasonably related to reporting the criminal
activity at issue. See Kelly at 459-460.
7
Appellees’ Motion for Summary Judgment
{¶15} In support of their motion for summary judgment, Appellees provided the
deposition testimony of Mr. Snowden, Mr. Morgan, Amy Ramey, PA, Debra Rathge, RN,
Deborah Vinesky, RN, and Marc Baumgard, M.D. The Appellees further provided an affidavit
of the arresting officer, Sargent Kenneth Zapolski.
{¶16} Mr. Snowden testified that he has worked at the hospital for three years as an
“access family liaison.” His job duties include taking patient information at the emergency room
window and providing that information to medical staff. Mr. Snowden observed the Morgans on
the morning at issue. When Ms. Garza-Morgan arrived, she entered the emergency room alone,
covered in blood. A nurse escorted her to the examination rooms. Afterward, Mr. Morgan
entered the emergency room lobby and told Mr. Snowden that his wife had come in and that he
would wait in the lobby until she was ready to leave. Mr. Snowden testified that Mr. Morgan’s
behavior seemed odd to him because Mr. Morgan was “very casual” and it “almost seemed like
he didn’t care and he just sat down.” Mr. Snowden asked Mr. Morgan what had happened, and
Mr. Morgan told him that he rolled over in bed and saw that his wife was bleeding. He then
went to the bathroom, where he found a large amount of blood. After cleaning the bathroom, he
drove his wife to the emergency room.
{¶17} Approximately one-half hour after the Morgans arrived at the hospital, Mr.
Morgan advised Mr. Snowden that he was going home to prepare for work and asked him to call
him when his wife was ready to leave. Mr. Snowden believed it to be suspicious and unusual
that a spouse would leave the hospital while the other was being treated, without asking to see
her or inquiring as to her status. Mr. Snowden relayed his suspicions to Dr. Baumgard, the
8
emergency room’s physician on duty. Dr. Baumgard asked Mr. Snowden to contact the police
department to investigate.
{¶18} During his deposition, Mr. Morgan testified that Mr. Snowden did not ask him
how Ms. Garza-Morgan sustained her injuries, and Mr. Morgan did not recall speaking to Mr.
Snowden regarding where or how he encountered his wife that morning prior to arriving at the
hospital. However, Mr. Morgan confirmed that most of Mr. Snowden’s account of how Mr.
Morgan discovered his wife was injured was accurate, except that Mr. Morgan did not see or
clean blood in the bathroom before coming to the hospital. Mr. Morgan testified that Mr.
Snowden had appeared “amus[ed]” when Mr. Morgan was waiting in the lobby for his wife.
{¶19} Ms. Ramey testified that she is a physician’s assistant, and she was working at the
Community Health facility when Ms. Garza-Morgan arrived. Although she could not
independently recollect treating Ms. Garza-Morgan, Ms. Ramey reviewed the patient notes in the
hospital’s file. The notes indicated that Ms. Garza-Morgan claimed that she awoke that morning
to discover that her head was bleeding, and, although she could not explain what had happened
to her, she believed that she had fallen. The laceration on Ms. Garza-Morgan’s head was six
centimeters in length and one-half of a centimeter deep. The size of the laceration required Ms.
Ramey to use two layers of closures and sutures to treat it. Staff also identified abrasions to her
right knee and shoulder. Ms. Ramey testified that given the nature and location of the injuries,
and Ms. Garza-Morgan’s inability to explain how she was injured, she believed that there was a
reasonable basis on which to call the police to investigate. Ms. Ramey further noted that it is
common practice to request a non-medical staff member to contact law enforcement in such
situations so that the medical staff can concentrate on treating the patient.
9
{¶20} Ms. Rathge and Ms. Vinesky testified that they are registered nurses who treated
Ms. Garza-Morgan. Ms. Rathge concurred that the laceration was very large, and that Ms.
Garza-Morgan had abrasions on various locations on her body. Ms. Rathge opined that, “if she
did fall, she would have had to have fallen many times to get those type of injuries in the various
spots.” Ms. Vinesky testified that she arrived for work at approximately 7:00 a.m. on the date at
issue. Ms. Garza-Morgan was very anxious to leave when Ms. Vinesky arrived. Ms. Vinesky
noted on the patient chart that Ms. Garza-Morgan denied that any harm had been done to her by
her husband.
{¶21} Dr. Baumgard testified that when he examined Ms. Garza-Morgan, her
mannerisms were consistent with an individual who was under the influence or very confused.
He noted that the nurses had documented bruises on her shoulder that appeared to have been
caused by injuries predating her scalp laceration. The pre-existing bruises and the location of the
laceration, which was directly on top of her head, seemed inconsistent with a fall, which made
Dr. Baumgard concerned that she had been the victim of domestic violence. During his
deposition, Dr. Baumgard noted that he recalled speaking with Mr. Snowden regarding
involvement of the police relative to Ms. Garza-Morgan’s injuries. However, Dr. Baumgard
could not remember whether he directed Mr. Snowden to call the police or whether Mr.
Snowden informed Dr. Baumgard that the police had been called. In any event, he agreed with
the decision to involve law enforcement.
{¶22} Sergeant Zapolski averred in his affidavit that, after hospital staff alerted law
enforcement of their suspicions of domestic violence, Officer Daniel A. Bozsoki went to the
hospital, where he interviewed Ms. Garza-Morgan, viewed her injuries, and spoke with the
hospital staff. Sergeant Zapolski provided a case report which set forth a summary of the
10
interviews. In the case report, Officer Bozsoki concluded that, because Ms. Garza-Morgan had
provided alternative explanations for her injuries, her explanations were unreliable. In the report,
Officer Bozsoki determined that there was probable cause to arrest Mr. Morgan based upon his
investigation. As a result, he executed a warrant and Sergeant Zapolski arrested Mr. Morgan on
the warrant when Mr. Morgan returned to the hospital.
The Morgans’ Brief in Opposition to Summary Judgment
{¶23} In their brief in opposition to Appellees’ motion, the Morgans maintained that
questions of fact still existed as to their claims. In support, they produced the deposition
testimony of Sergeant Zapolski and an affidavit of Ann Quimby, RN.
{¶24} In his deposition, Sergeant Zapolski testified that, as a matter of practice, an
investigation made in response to a hospital’s report of possible domestic violence includes the
interviewing of hospital staff. In conducting these interviews, the department tends to rely
greatly upon the expertise of the medical personnel.
{¶25} Ms. Quimby averred that she had forty-eight years of nursing experience, and she
made an independent review of Ms. Garza-Morgan’s hospital records, police report, and
deposition testimony. Based upon her review, Ms. Quimby concluded that Ms. Garza-Morgan’s
behavior did not indicate that she was fearful of Mr. Morgan. She also reviewed Community
Health’s procedures, and she opined that Mr. Morgan did not exhibit signs consistent with that of
an “abuser” as that term is described in the procedures. Further, no documentation in Ms. Garza-
Morgan’s records indicated the cause of injury to be domestic abuse. Based upon her review,
Ms. Quimby believed that Community Health’s medical and nursing staff “did not have
reasonable cause to report to law enforcement that [Ms.] Garza-Morgan had suffered domestic
abuse by her husband [Mr.] Morgan on July 31, 2006.”
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{¶26} Based upon the above, the Morgans argued that questions of fact existed as to
whether Appellees’ actions fell within the purview of R.C. 2921.22.
{¶27} We will separately discuss the propriety of granting the Appellees’ motion for
summary judgment on Mr. Morgan’s claims and on Ms. Garza-Morgan’s claims. We will
address these claims out of the order that they were presented in the complaint to facilitate our
discussion.
Summary Judgment on Ms. Garza-Morgan’s Claims
{¶28} As set forth above, Ms. Garza-Morgan’s claims against Appellees for invasion of
privacy and wrongful disclosure are predicated upon Appellees’ statements to police pertaining
to her confidential medical information. Appellees maintained in their motion for summary
judgment that no question of fact existed on these claims because they were immune under R.C.
2921.22(H), as they acted in accordance with R.C. 2921.22(B). The Morgans responded that
triable issues remained as to the applicability of R.C. 2921.22(B)/(H). On appeal, the Morgans
have framed the issues in their brief and have limited their arguments as to whether triable issues
remained on the questions of (1) the reasonableness of Community Health’s belief that an
offense of violence caused the injuries, and (2) whether Mr. Snowden was a person “giving aid”
within the meaning of R.C. 2921.22(B). We will likewise limit our discussion.
{¶29} R.C. 2921.22(B) mandates the disclosure to law enforcement of serious physical
harm where a person giving aid has a “reasonable cause to believe” that the harm resulted from
an offense of violence. Whether one has “reasonable cause to believe” requires a determination
of “whether a person of ordinary prudence and care would believe” that the circumstances at
issue exist. See State v. Overholt, 9th Dist. No. 02CA0108-M, 2003-Ohio-3500, ¶ 22 (examining
R.C. 2913.51(A), which prohibits receipt of property that one has “reasonable cause to believe”
12
has been obtained through commission of a theft offense”), citing State v. Petty, 8th Dist. No.
52069, 1987 WL 11401, *4 (May 21, 1987).
{¶30} In light of the undisputed facts, we conclude that Community Health had
reasonable cause to believe that Ms. Garza-Morgan was the victim of an offense of violence.
There is no dispute of fact that Ms. Garza-Morgan entered the emergency room alone, bleeding
heavily from a laceration to her scalp, and this laceration was located directly atop of her head.
There is also no dispute that Ms. Garza-Morgan could not explain to the hospital staff the cause
of her injuries, and instead merely suggested that she might have fallen. Further, Ms. Garza-
Morgan had bruises on other locations of her body which appeared to predate her fall.
Moreover, there is no dispute that Ms. Garza-Morgan entered the hospital alone, and Mr. Morgan
entered the lobby thereafter. Mr. Morgan also acknowledged that he left the hospital while Ms.
Garza-Morgan was being treated, advising that he would come back when she was ready to
leave. The particular facts and circumstances of this case, including the nature and location of
Ms. Garza-Morgan’s injuries, and what could reasonably be construed as unusually apathetic
behavior on the part of Mr. Morgan, gave Community Health a reasonable basis to believe that
Ms. Garza-Morgan had been the victim of domestic violence.
{¶31} Next, in regard to the Morgans’ argument regarding a “person giving aid,” R.C.
2921.22(B) requires “physicians, limited practitioners, nurses, or other persons giving aid to a
sick or injured person” to make the required disclosure. The parties agree that Mr. Snowden was
not a physician, limited practitioner, or nurse. Therefore, R.C. 2921.22(B) applied to him if he
was a person “giving aid” to Ms. Garza-Morgan. The Morgans maintain that R.C. 2921.22(B)
applies only to those with a medical license based upon the rule of statutory construction of
ejusdem generis. See McGuire v. Lorain, 9th Dist. No. 10CA009893, 2011-Ohio-3887, ¶ 5,
13
quoting Light v. Ohio University, 28 Ohio St.3d 66, 68 (1986) (doctrine of ejusdem generis holds
that if “general words follow the enumeration of particular classes of things, the general words
will be construed as applying only to things of the same general class as those enumerated.”).
{¶32} We decline to adopt such a limited interpretation of a “person giving aid” as
advanced by Appellees, as, the General Assembly could have easily limited the applicability of
R.C. 2921.22(B) to only licensed healthcare workers, had it intended to do so. See R.C.
2711.22(B)(1) (defining a “healthcare provider” as used in R.C. 2711.23 and 2711.24 as
including several licensed healthcare professionals, such as a physician, licensed practical nurse,
registered nurse, advanced practice registered nurse, and emergency medical technicians), and
R.C. 3701.74(A)(4) (defining a “health care practitioner” as including numerous licensed
medical professionals). We also note that the provision did not further limit the privilege to
those rendering treatment to a sick or injured person, but rather aid. Aid appears to be a broader
category than treatment.
{¶33} Instead, when construing a statute, we first must look to the plain language of its
provisions. Hewitt v. L.E. Myers, 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 16, citing State v.
Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991. “In doing so, we read words and phrases in
context and according to the rules of grammar and common usage, and they must be given a
technical or particular meaning if appropriate.” Id., citing R.C. 1.42. Applying those principles
to the language at issue, “to aid [vb.]” means “to provide with what is useful or necessary in
achieving an end,” and “aid [n.]” means “the act of helping[.]” Merriam-Webster’s Collegiate
Dictionary, 26 (11th Ed.2005). Whereas, “to treat” in this context means “to care for or deal
with medically or surgically.” Merriam-Webster’s Collegiate Dictionary, 1333 (11th Ed.2005).
Thus, we conclude that based upon its context and plain meaning, a “person giving aid” within
14
the meaning of R.C. 2921.22 is a person who is helping an individual achieve treatment of her
injury, even though that person may not be directly involved in rendering medical treatment. We
note that this interpretation is also consistent with the doctrine of ejusdem generis, although not
as limited in scope as the Morgans have urged.
{¶34} Here, there is no dispute of fact that Mr. Snowden was an “access family liaison”
and his job duties entailed making initial contact with patients, and reporting their information to
medical staff, who then determined priority of the treatment based upon this information. We
conclude that, in this capacity, Mr. Snowden is a person who helps individuals obtain treatment
for their injuries. Accordingly, we conclude that R.C. 2921.22(B) is applicable to Mr. Snowden.
{¶35} Therefore, the trial court did not err in granting summary judgment to Appellees
on Ms. Garza-Morgan’s claims, as Appellees were immune from suit under R.C. 2921.22(H) on
these claims because they acted in accordance with R.C. 2921.22(B).
Summary Judgment on Mr. Morgan’s Claims
{¶36} Although immunity under R.C. 2921.22(H) is applicable to Ms. Garza-Morgan’s
claims, we cannot conclude that it is applicable to Mr. Morgan’s claims. As set forth above,
R.C. 2921.22(H) provides that disclosure of information pursuant to R.C. 2921.22 cannot give
“rise to any liability or recrimination for a breach of privilege or confidence.” (Emphasis
added.). Mr. Morgan’s claims are not based upon breach of privilege or confidence. Unlike Ms.
Garza-Morgan’s claims, the parties at no time assert that the Appellees owed a duty to Mr.
Morgan to maintain his statements in confidence, and Mr. Morgan does not base his claims upon
a breach of such a duty. Instead, his defamation claims arise due to the purported statement
made by Mr. Snowden to the police that Mr. Morgan committed an act of domestic violence
15
against Ms. Garza-Morgan. Therefore, R.C. 2921.22(H) does not preclude his liability on these
claims.
{¶37} Be that as it may, the inapplicability of subsection (H) to these claims does not
negate Mr. Snowden’s duty to disclose information to law enforcement as required under
subsection (B), discussed above. R.C. 2921.22. Based upon this duty, the Appellees also argued
in their motion for summary judgment that Mr. Snowden’s statement to police officers was
qualifiedly privileged and that the Morgans could not demonstrate actual malice in order to
overcome the qualified privilege. See Jacobs v. Frank, 60 Ohio St.3d 111 (1991), paragraph two
of the syllabus (where a statement is qualifiedly privileged, the privilege “can be defeated only
by a clear and convincing showing that the communication was made with actual malice.”).
However, because we conclude that absolute privilege existed to protect Mr. Snowden’s
statements pertaining to Mr. Morgan for reasons independent of R.C. 2921.22, we need not reach
the issue of whether a question of fact existed as to qualified privilege and actual malice.
{¶38} “Under the doctrine of absolute privilege, statements made in a judicial
proceeding which bear some reasonable relationship to the proceeding are not actionable.”
Kutnick v. Fischer, 8th Dist. No. 81851, 2004-Ohio-5378, ¶ 27, citing M.J. DiCorpo, 69 Ohio
St.3d at 505. The privilege applies even if the statement is untrue. Pease Co. v. Huntington Nat.
Bank, 24 Ohio App.3d 227, 232 (10th Dist.1985), citing Buehrer v. Provident Mutual Life Ins.
Co., 123 Ohio St. 264 (1931), paragraph four of the syllabus. Whether this privilege applies in a
given case is a question of law. Surace v. Wuliger, 25 Ohio St.3d 229, 231 (1986).
{¶39} While the instant matter was pending on appeal, this Court decided Lasater v.
Vidahl, 9th Dist. No. 26242, 2012-Ohio-4918. In Lasater, we adopted the approach of the
Fourth District, holding that “absolute privilege should apply to those who report criminal
16
activity to police officers.” Id. at ¶ 9; Brown v. Chesser, 4th Dist. No. 97 CA 510, 1998 WL
28264, *4 (Jan. 28, 1998). This absolute privilege applies if the statements “bear some
reasonable relation to the activity reported.” Lasater at ¶ 11, citing M.J. DiCorpo, 69 Ohio St.3d
at syllabus. Here, in the complaint, Mr. Morgan maintained that Mr. Snowden “verbally
reported and published to third parties, namely officers of the City of Lorain Police Department,
that [Mr.] Morgan was responsible for the injuries for which Ms. Garza-Morgan had been treated
at[ ]Community Health[.]” Given our holding in Lasater, Mr. Snowden’s statement to police is
absolutely privileged as it was made to police officers and was reasonably related to the crime
reported.
{¶40} Accordingly, as Mr. Morgan based his defamation claims solely upon Mr.
Snowden’s report to police officers, summary judgment was appropriate.
III.
{¶41} The Morgans’ sole assignment of error is overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
17
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
CARLA MOORE
FOR THE COURT
HENSAL, J.
CONCURS.
BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RICHARD R. MELLOTT, JR., Attorney at Law, for Appellants.
RYAN K. RUBIN, ALLISON E. HAYES, and THOMAS P. MANNION, Attorneys at Law, for
Appellees.